Article 5, Paragraph 1, Subparagraph 2, of the Law of Interpretation Procedure for the Grand Justices provides that when an individual whose constitutional right was infringed upon and whose remedies provided by law for such infringement have been exhausted has questions on the constitutionality of the statute or regulation relied upon by the court of last resort in its final judgment, he may make petition for interpretation of the Constitution. This Council has repeatedly ruled (See J.Y. Interpretations Nos. 216, 238 and 336) that the regulation mentioned in the provision should not be confined to the regulation in the formal sense or to some legal titles (e.g., Article 3 of the Standard Act for Laws and Rules). The administrative rules or opinions on applying the law (e.g., opinion letters by relevant agencies) ex officio promulgated by the central or local governments could be the objects for judicial review if they are invoked by the judges in the final judgment, although they have no legal binding force on the independent judges. According to current laws, the judicial branch, except in concrete cases, may express its legal opinions in precedents and resolutions. It is an established practice that the precedents whose constitutionality is challenged by the people have been deemed as regulations mentioned above and have been reviewed by this Council (See J.Y. Interpretations Nos. 154, 177, 185, 243, 271, 368 and 372). Although the Resolutions made by the Supreme Court have only consultative, not legally binding, force on judges and therefore cannot be seen as equal to the Precedents, due to the fact that they are made according to law (See Article 78 of the Law of Court Organization and Article 32 of the Regulations Governing the Operational Procedures of the Supreme Court) and represent the legal opinions of the Supreme Court, they shall be deemed equivalent to the regulations mentioned above if they are invoked by judges in judgments, and thus subject to review by this Council once the people make petition for interpretation.
Article 15 of the Constitution provides that the right of property shall be guaranteed to the people. Article 16 of the Constitution also explicitly provides that the people shall have the right to institute legal proceedings. Accordingly, when a person whose property rights have been infringed institutes legal proceedings to seek remedies, the concerned court qua a judiciary organization should ex officio make the judgment to resolve the dispute, based on the examination of evidence and rules of experience and reasoning. The re-surveying of a land-ownership map pursuant to Articles 46-1 to 46-3 of the Land Law is purely a technical service ex officio provided by the land administration agencies. The purpose of this service is to utilize a census and survey to reflect the scope of the people’s original ownership on the land-ownership map correctly and completely. It does not expand or diminish the scope of the people’s private rights. Therefore, when a land owner according to law brings a civil case before the courts contesting a boundary, the courts should not, based on the reason that there is obviously no basis for him/her to ask that the boundary be redrawn to correct his/her earlier mistake in identifying the boundary, dismiss the case, but should, based on the examination of the evidence, substantially review the case, even though the bordering land owners, having been notified by the land administration agency, were on site to identify the boundary jointly, and no dispute arose when the land administration agency did the survey. This is necessary because the land administration agency according to law has to make the change in registration of land boundary based on the survey once the period of public notice of the survey result expires, even though the land owner, in order to correct his/her earlier mistake made on site, contests the result within the period of public notice. The Resolution of the 8th Supreme Court Civil Law Convention (April 22, 1986), Part I, essentially states that to implement the policy for clarifying the scope of land ownership in the Land Law thoroughly and to avoid any interruption, the land owner who identifies the boundary earlier on site should not be allowed to ask that the boundary be redrawn later and the civil suit bought by him/her should be dismissed as frivolous. Said Resolution, being inconsistent with the above holding and in violation of the constitutional rules protecting the people’s property rights and the right to institute legal proceedings shall no longer apply.
*Translated by Professor Tze-Shiou Chien.